Citation Nr: 0821910
Decision Date: 07/03/08 Archive Date: 07/14/08
DOCKET NO. 04-21 375 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia
THE ISSUES
1. Entitlement to an initial rating higher then 30 percent
for the service-connected migraine headaches.
2. Entitlement to an initial rating higher then 10 percent
for the service-connected lumbar strain and lumbar myositis.
3. Entitlement to an initial rating higher then 10 percent
for the service-connected cervical strain with spasms in the
neck and right trapezius muscle.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A.M. Ivory, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1982 to
December 2002.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from both a March 2003 and an April 2003 RO
rating decision.
The Board notes that a February 2008 RO rating decision
increased the service-connected lumbar strain from
noncompensable to a 10 percent rating, effective ON January
1, 2003, the date of the claim. The same RO rating decision
increased the service-connected migraines from a
noncompensable rating to 30 percent, effective on January 1,
2003.
Inasmuch as a rating higher than 10 percent and 30 percent
for the service-connected lumbar strain and service-connected
migraines is available, and inasmuch as a claimant is
presumed to be seeking maximum available benefit for a given
disability, the claim for higher ratings, as reflected on the
title page, remains viable on appeal. See AB v. Brown, 6
Vet. App. 35, 38 (1993).
As the claim on appeal involves a request for higher initial
rating following the grant of service connection, the Board
has characterized that issue in light of the distinction
noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999)
(distinguishing an initial rating claim from a claim for an
increased rating for disability already service-connected).
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the issues on appeal has been accomplished.
2. The service-connected migraine headaches is not shown to
be productive of a clinical picture with manifestations of
very frequent and completely prostrating and prolonged
attacks that cause severe economic inadaptability.
3. The service-connected lumbar strain and lumbar myositis
is shown to be productive of a disability picture that more
closely approximates that of functional loss due to pain and
muscle spasms.
4. The service-connected cervical spine disability is shown
to be productive of a disability picture that more closely
approximates that of functional loss due to pain and muscle
spasm.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a rating in excess of
30 percent for the service-connected migraine headaches have
not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a,
including Diagnostic Code 8100 (2007).
2. The criteria for the assignment of an initial evaluation
of 20 percent, but not more for the service-connected lumbar
strain and lumbar myositis have been met. 38 U.S.C.A. §§
1155, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1,
4.2, 4.7, 4.10, 4.40, 4.45, 4.71a including Diagnostic Codes
5237 (2007).
3. The criteria for the assignment of an initial evaluation
of 20 percent, but not more for the service-connected
cervical strain have been met. 38 U.S.C.A. §§ 1155, 5103,
5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7,
4.10, 4.40, 4.45, 4.71a including Diagnostic Code 5237
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
Initially, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To
implement the provisions of the law, VA promulgated
regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2007).
VCAA and its implementing regulations include, upon the
submission of a substantially complete application for
benefits, an enhanced duty on the part of VA to notify a
claimant of the information and evidence needed to
substantiate a claim, as well as the duty to notify the
claimant what evidence will be obtained by whom. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b).
In addition, they define the obligation of VA with respect to
its duty to assist a claimant in obtaining evidence. 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
Considering the duties imposed by VCAA and its implementing
regulations, the Board finds that all notification and
development action needed to fairly adjudicate the claims on
appeal has been accomplished.
The Board notes that the issue on appeal is a "downstream"
issue. In March 2006, the RO sent the veteran a letter
informing him that to establish entitlement to service-
connected compensation benefits the evidence must show
credible supporting evidence of a disease or injury that
began in or was made worse during service, or that there was
an event in service which caused injury or disease; a current
physical or mental disability; and a relationship between the
current disability and an injury, disease or event in
service.
The Courts have held that were the underlying claim for
service connection has been granted and there is disagreement
as to downstream questions, the claim has been substantiated
and there is no need to provide additional VCAA notice or
prejudice from absent VCAA notice. Hartman v. Nicholson, 483
F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.
112 (2007).
The Board accordingly finds that the veteran has received
sufficient notice of the information and evidence needed to
support his claim for increased rating and has been afforded
ample opportunity to submit such information and evidence.
The Board also finds that the March 2006 letter satisfies the
statutory and regulatory requirement that VA notify a
claimant what evidence, if any, will be obtained that the
claimant, and what evidence, if any, will be obtained by VA.
See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002)
(addressing the duties imposed by 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b)).
The March 2006 letter advised the veteran that VA is
responsible for getting relevant records from any Federal
Agency including medical records from the military, VA
hospitals (including private facilities where VA authorized
treatment), or from the Social Security Administration.
The letter also advised the veteran that VA must make
reasonable efforts to help the veteran get relevant records
not held by any Federal agency, including State or local
governments, private doctors and hospitals, or current or
former employers.
In the decision of Pelegrini v. Principi, 18 Vet. App. 112
(2004), the United States Court of Appeals for Veterans
Claims (Court) held that proper VCAA notice should notify the
veteran of: (1) the evidence that is needed to substantiate
the claim(s); (2) the evidence, if any, to be obtained by VA;
(3) the evidence, if any, to be provided by the claimant; and
(4) a request by VA that the claimant provide any evidence in
the claimant's possession that pertains to the claim(s). As
explained, the first three requirements have been met. The
fourth requirement has not been met; however, 38 C.F.R. §
3.159, concerning VA assistance in developing claims, has
been revised in part recently.
These revisions are effective as of May 30, 2008, and several
portions of the revisions are pertinent to the case at hand.
73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the
final rule removes the third sentence of 38 C.F.R. §
3.159(b)(1), which had stated that VA will request the
claimant to provide any evidence in the claimant's possession
that pertains to the claim.
Pelegrini also held that the plain language of 38 U.S.C.A.
§ 5103(a) (West 2002), requires that notice to a claimant
pursuant to VCAA be provided "at the time" that, or
"immediately after," the Secretary receives a complete or
substantially complete application for VA-administered
benefits. In that case, the Court determined that VA had
failed to demonstrate that a lack of such pre-adjudication
notice was not prejudicial to the claimant.
As indicated, in the matters now before the Board, documents
fully meeting the VCAA's notice requirements were provided to
the veteran after the rating action on appeal. However, the
Board finds that the lack of full pre-adjudication notice in
this appeal has not, in any way, prejudiced the veteran.
The Board notes that the Court has held that an error in the
adjudicative process is not prejudicial unless it "affects a
substantial right so as to injure an interest that the
statutory or regulatory provision involved was designed to
protect such that the error affects 'the essential fairness
of the [adjudication].'" Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
The Board finds that, in this appeal, the delay in issuing
section 5103(a) notice was not prejudicial to the veteran
because it did not affect the essential fairness of the
adjudication, in that his claim was fully developed and
readjudicated after notice was provided.
As indicated, the RO gave the veteran notice of what was
required to substantiate the claim on appeal, and the veteran
was afforded ample opportunity to submit such information
and/or evidence.
Neither in response to the documents cited above, nor at any
other point during the pendency of this appeal, has the
veteran or his representative informed the RO of the
existence of any evidence-in addition to that noted below-
that needs to be obtained prior to appellate review.
Hence, the Board finds that any failure on VA's part in not
completely fulfilling the VCAA notice requirements prior to
the RO's initial adjudication of the claim is harmless. See
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998); Cf. 38 C.F.R. § 20.1102 (2007).
More recently, the Board notes that, on March 3, 2006, during
the pendency of this appeal, the Court issued a decision in
the consolidated appeal of Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006), which held that the in rating cases, a
claimant must be informed of the rating formulae for all
possible schedular ratings for an applicable rating criteria.
As regards the claim for increase on appeal, the Board finds
that this was accomplished in the March 2004 Statement of the
Case (SOC), which suffices for Dingess.
Dingess also held that VA notice must include information
regarding the effective date that may be assigned, and this
has was expressly done in a follow-up letter sent to the
veteran in March 2006. Further, the Board's decision grants
the claims for increased initial rating back to the original
effective date therefore, there is accordingly no possibility
of prejudice.
The Board also notes that there is no indication whatsoever
that any additional action is needed to comply with the duty
to assist the veteran in connection with the claims on
appeal.
The veteran's service medical records and post-service VA
medical records have been associated with the claims file.
Neither the veteran nor his representative has identified,
and the file does not otherwise indicate, that there are any
other VA or non-VA medical providers having existing records
that should be obtained before the claims are adjudicated.
The veteran was afforded VA examinations in November 2002,
April 2003, June 2004 and February 2008.
Finally, the veteran was advised of his right to a hearing
before the RO and/or before the Board, but he waived that
right.
Under these circumstances, the Board finds that the veteran
is not prejudiced by the Board proceeding, at this juncture,
with an appellate decision on the claim for increased ratings
for his service-connected disabilities.
II. Analysis
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities, which assigns ratings
based on average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7.
Any reasonable doubt regarding the degree of disability is
resolved in favor of the veteran. See 38 C.F.R. §§ 3.102,
4.3 (2007).
The veteran's entire history is to be considered when making
disability evaluations. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
Where entitlement to compensation already has been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
A. Service-connected Migraine Headaches
The veteran testified that his service-connected migraine
headaches warranted a rating higher then the current 30
percent.
The veteran's migraine headaches have been rated under 38
C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code
8100 a 10 percent evaluation is warranted for characteristic
prostrating attacks averaging one in 2 months over the last
several months.
A 30 percent rating is granted if there are prostrating
attacks occurring on an average once a month over the last
several months.
The highest rating is 50 percent which is assignable for very
frequent, completely prostrating and prolonged attacks
productive of severe economic inadaptability.
At the veteran's November 2002 VA contract examination, he
reported having bifrontal/bitemporal throbbing associated
with phonophobia and photophobia; however, he did not have an
aura, nausea or vomiting. His headaches lasted 3 to 4 days
if not treated and happened every 2 weeks.
In June 2004, the veteran had another VA examination when he
reported having pounding headaches that felt as he had rocks
rolling around. He also had sensitivity to light and sound
and had to sit in a dark, quiet room to relieve the
headaches. He stated that, during the headaches, he could
not do anything or concentrate. He could only sit in the
dark, rest and relax. He reported having 2 headaches a week
that could last for four hours and losing 2 days from work
each time he an attack.
At a February 2008 VA contract examination, the veteran
reported having a throbbing sensation that usually lasted for
2 days. He had to stay in bed, could not do anything, and
had light sensitivity. He reported that they occurred 2
times per week and that he took Tramadol and Flexeril.
After careful review of the evidentiary record, the Board
finds that the service-connected migraine headaches is not
shown to be productive of a disability picture manifested by
very frequent and completely prostrating and prolonged
attacks productive of severe economic inadaptability.
While the veteran has described a history of recurring
headaches for which he takes medication, the frequency of
actual prostrating manifestations as described by the veteran
is not shown to be more than one per month. Actual headaches
attacks productive of complete prostration on a very frequent
basis are not documented in the record. When the veteran's
statements are viewed in light of the medical evidence on
file, he also is not shown to experience severe economic
disruption due to the service-connected migraine headaches.
Accordingly, the Board finds that an increased rating higher
than 30 percent is not for application for the service-
connected migraine headaches in this case.
B. Service-connected Lumbar strain and Lumbar Myotitis
The veteran asserts that his service-connected lumbar spine
and lumbar myositis warrants an initial rating in excess of
10 percent.
During the pendency of this appeal, the criteria for
evaluating spine disorders have been substantially revised.
For the period beginning on September 23, 2002, under
38 C.F.R. § 4.71a, Diagnostic Code 5243, a 10 percent
evaluation is warranted for intervertebral disc syndrome with
incapacitating episodes having a total duration of at least
one week but less than two weeks during the past twelve
months.
A 20 percent evaluation contemplates intervertebral disc
syndrome with incapacitating episodes having a total duration
of at least two weeks but less than four weeks during the
past twelve months.
A 40 percent evaluation is assigned in cases of
incapacitating episodes having a total duration of at least
four weeks but less than six weeks during the past twelve
months.
A 60 percent evaluation contemplates incapacitating episodes
having a total duration of at least six weeks during the past
twelve months. Associated objective neurological
abnormalities (e.g., bladder and bowel impairment) are to be
evaluated separately.
Moreover, the remaining diagnostic criteria for evaluating
spine disorders have recently been revised, effective from
September 26, 2003. This further revision incorporates the
new criteria for evaluating intervertebral disc syndrome. 68
Fed. Reg. 51454-51458 (August 27, 2003).
Under the recent code revisions (Diagnostic Codes 5235-5242),
a 10 percent evaluation is in order for forward flexion of
the thoracolumbar spine greater than 60 degrees but not
greater than 85 degrees; combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater
than 235 degrees; muscle spasm, guarding, or localized
tenderness not resulting in an abnormal gait or abnormal
spinal contour; or a vertebral body fracture with loss of 50
percent or more of the height.
A 20 percent evaluation is warranted for forward flexion of
the thoracolumbar spine greater than 30 degrees but not
greater than 60 degrees; a combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis.
A 40 percent evaluation is in order for forward flexion of
the thoracolumbar spine of 30 degrees or less, or favorable
ankylosis of the entire thoracolumbar spine.
A 50 percent evaluation is warranted for unfavorable
ankylosis of the entire thoracolumbar spine, while a 100
percent evaluation contemplates unfavorable ankylosis of the
entire spine.
Also, under these revisions, the "combined range of motion"
refers to the sum of forward flexion, extension, left and
right lateral flexion, and left and right rotation.
38 C.F.R. § 4.71a (Plate V) indicates that normal range of
motion of the thoracolumbar spine encompasses flexion to 90
degrees and extension, bilateral lateral flexion, and
bilateral rotation to 30 degrees. The normal combined range
of motion of the cervical spine is 340 degrees and of the
thoracolumbar spine is 240 degrees.
At the November 2002 VA examination, the veteran reported
lower back pain twice a day for one hour, usually at night
when he slept but occasionally during the day. He described
the pain as due to a muscle spasm in the lower portion of his
back that was non-radiating.
On examination, there was no evidence of radiation of pain,
muscle spasm or tenderness. His range of motion of the
lumbar spine was: flexion to 95 degrees, extension was to 35
degrees, right lateral flexion was to 40 degrees, left
lateral flexion was to 40 degrees, right rotation was to 35
degrees, and left rotation was to 35 degrees. There was no
pain throughout the range of motion or ankylosis.
At the veteran's June 2004 VA examination, he reported having
constant lower back pain that traveled to his left leg. He
described the pain as crushing in nature, cramping and sharp,
with severity level of a 10. When he had sharp pain his
muscles locked up and felt stiff, he was unable to go through
the full range of motion.
For relief, he took Naprosyn, Flexeril, Vicodin, and Tylenol
No. 3; he reported that his medication made him very sleepy
and unable to do much. He was unable to lift heavy items
without spasm, unable to do any extended physical activity or
extreme exercise.
On examination, the veteran had no radiation on movement; he
had muscle spasms and tenderness on the right erector spinae
muscle. His range of motion for flexion was from 0 degrees
to 90 degrees with pain at 40 degrees; extension was from 0
degrees to 30 degrees with pain at 30 degrees; right lateral
flexion was from 0 degrees to 30 degrees with pain at 30
degrees; left lateral flexion was from 0 degrees to 30
degrees with no pain; right rotation was from 0 degrees to 30
degrees with pain at 30 degrees; and left rotation was from
0 degrees to 30 degrees with pain at 30 degrees. There was
no additional limitations besides pain and there was no
ankylosis or intervertebral disc syndrome present.
At the February 2008 VA contracted examination, the veteran
reported constant stiffness and pain in his back that
radiated down to his legs, was sharp and varied in severity.
On examination, there was no radiation of pain on movement;
however, there were muscles spasms throughout both sides of
the lumbar paraspinal muscles and tenderness across the
entire back.
His range of motion for flexion was from 0 degrees to 70
degrees with pain at 70 degrees; extension was from 0 degrees
to 30 degrees with pain at 30 degrees; right and left lateral
flexion was from 0 degrees to 20 degrees with pain at 20
degrees bilaterally; and right and left rotation was from 0
degrees to 20 degrees with pain at 20 degrees bilaterally.
After repetitive use pain was the major functional impact,
there was no fatigue, weakness, lack of endurance,
incoordination or additional degree of limitation of motion.
After careful review of the veteran's VA examinations and
treatment reports, the Board finds that, under the newest
criteria, the service-connected lumbar strain and lumbar
myositis more closely approximates the next higher rating of
20 percent because of his demonstrated functional loss due to
pain and muscle spasms.
However, his service-connected lumbar strain and lumbar
myositis is not manifested by forward flexion of the
thoracolumbar spine of 30 degrees or less, or favorable
ankylosis of the entire thoracolumbar spine for the next
higher rating.
The Board notes that the rating criteria effective on
September 23, 2002, is not applicable since it only involves
interveterbral disc syndrome and that is not shown to be
present in this case.
The Board also notes that the veteran's service-connected
lumbar strain disorder includes lumbar myositis, which is
rated under 38 C.F.R. § 4.71a Diagnostic Code 5021.
However, 38 C.F.R. § 4.71a states that diseases under
Diagnostic code 5013 through 5024 will be rated on limitation
of motion of affected parts, as arthritis, degenerative,
except gout which will be rated under Diagnostic Code 5002.
Therefore, the Board finds that the veteran's service-
connected lumbar strain and lumbar myositis does not warrant
separate ratings.
To grant separate ratings would be pyramiding, the evaluation
of the same manifestation under different diagnoses are to be
avoided. 38 C.F.R. § 4.14. Also, Esteban v. Brown, citing
Brady v. Brown: "38 U.S.C.A. sec. 1155 implicitly contains
the concept that 'the rating schedule may not be employed as
a vehicle for compensating a claimant twice or more for the
same symptomatology; such a result would overcompensate the
claimant for the actual impairment of his earning capacity'
and would constitute pyramiding." Esteban v. Brown, 6 Vet.
App. 259, 261 (1994), citing Brady v. Brown, 4 Vet. App. 203
(1993)
The Board notes that VA must consider the effect of pain and
weakness when rating a service-connected disability on the
basis of limitation of range of motion. DeLuca, 8 Vet. App.
202 (1995). Functional loss due to pain or weakness must be
supported by adequate pathology and evidenced by the visible
behavior of the claimant. See 38 C.F.R. § 4.40.
The veteran's lumbar strain and lumbar myositis produces some
functional loss as a result of his pain; however, additional
limitation of function due to fatigue, weakness or lack of
endurance is not shown. The currently assigned 20 percent
rating already contemplates the pain on limitation of motion
and does not warrant an additional rating under DeLuca.
Considering the VA examinations and VA treatment reports an
initial higher rating of 20 percent, but not higher, for the
service-connected lumbar strain and lumbar myositis is
warranted.
C. Service-connected Cervical Spine Disability
Disabilities of the spine are rated under the General Rating
Formula for Diseases and Injuries of the Spine (for
Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under
the Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes).
Ratings under the General Rating Formula for Diseases and
Injuries of the Spine are made with or without symptoms such
as pain (whether or not it radiates), stiffness, or aching in
the area of the spine affected by residuals of injury or
disease.
For the period beginning on September 23, 2002, under
38 C.F.R. § 4.71a, Diagnostic Code 5243, a 10 percent
evaluation is warranted for intervertebral disc syndrome with
incapacitating episodes having a total duration of at least
one week but less than two weeks during the past twelve
months.
A 20 percent evaluation contemplates intervertebral disc
syndrome with incapacitating episodes having a total duration
of at least two weeks but less than four weeks during the
past twelve months.
A 40 percent evaluation is assigned in cases of
incapacitating episodes having a total duration of at least
four weeks but less than six weeks during the past twelve
months.
A 60 percent evaluation contemplates incapacitating episodes
having a total duration of at least six weeks during the past
twelve months. Associated objective neurological
abnormalities (e.g., bladder and bowel impairment) are to be
evaluated separately.
The rating criteria revision effective on September 26, 2003,
further incorporates the new criteria for evaluating
intervertebral disc syndrome. 68 Fed. Reg. 51454-51458
(August 27, 2003).
Under the recent revisions (Diagnostic Codes 5235-5242), a 10
percent evaluation is in order for forward flexion of the
cervical spine greater than 30 degrees but not greater than
40 degrees; combined range of motion of the cervical spine
greater than 170 degrees but not greater than 335 degrees;
muscle spasm, guarding, or localized tenderness not resulting
in an abnormal gait or abnormal spinal contour; or a
vertebral body fracture with loss of 50 percent or more of
height.
A 20 percent evaluation is warranted for forward flexion of
the cervical spine greater than 15 degrees but not greater
than 30 degrees; a combined range of motion of the cervical
spine not greater than 170 degrees; or muscle spasm or
guarding severe enough to result in an abnormal gait or
abnormal spinal contour such as scoliosis, reversed lordosis
or abnormal kyphosis.
A 30 percent evaluation is assigned in cases of forward
flexion of the cervical spine of 15 degrees or less, or
favorable ankylosis of the entire cervical spine. A 40
percent evaluation is in order for unfavorable ankylosis of
the entire cervical spine. A 100 percent evaluation
contemplates unfavorable ankylosis of the entire spine.
Also, under these revisions, the "combined range of motion"
refers to the sum of forward flexion, extension, left and
right lateral flexion, and left and right rotation.
38 C.F.R. § 4.71a (Plate V) indicates that normal range of
motion of the cervical spine encompasses 45 degrees of
flexion, extension, and bilateral lateral flexion and 80
degrees of rotation. The normal combined range of motion of
the cervical spine is 340 degrees.
The Board notes that VA must consider the effect of pain and
weakness when rating a service-connected disability on the
basis of limitation of range of motion. DeLuca, 8 Vet. App.
202 (1995). Functional loss due to pain or weakness must be
supported by adequate pathology and evidenced by the visible
behavior of the claimant. See 38 C.F.R. § 4.40.
The Board notes that the terms "mild," "moderate" and
"severe" are not defined in the rating schedule; rather
than applying a mechanical formula, VA must evaluate all the
evidence to the end that its decisions are "equitable and
just." 38 C.F.R. § 4.6.
At the November 2002 VA examination, the veteran reported
daily spasms that occurred twice a day and lasted for one
hour in his neck and shoulders. Symptoms typically occurred
at night but occasionally occurred in the daytime.
The veteran had a VA examination in April 2003 for chronic
muscle spasms of his neck and bilateral shoulders. He
reported basic tightness in the muscles, as well as, soreness
and tenderness.
When he had spasms, he was unable to move and he reported
that it was a daily occurrence that could last for hours. He
had two episodes, one in 1998 and one in 2002 that resulted
in 5 days of bed rest. He used muscle relaxers, as well as,
Vicodin, Valium, Motrin, and Naprosyn. He was unable to
exercise or lift heavy items. He had trouble when he
twisted, bent over or lifted things over his head.
On examination, the veteran had muscle spasms and tenderness,
as well as, radiculopathy in the cervical nerve roots into
the trapezius muscles on the right. The examiner noted that
the veteran had full range of motion for flexion, extension,
left rotation and right lateral flexion with no pain; on left
lateral flexion, he had full range of motion with pain at 40
degrees, right rotation restricted range of motion at 70
degrees and pain at 50 degrees. It was noted that the
veteran had incoordination when he had a flare up of the
cervical spine. There was no ankylosis present.
At the veteran's June 2004 VA examination, he reported having
chronic cervical strain with right radiculopathy and muscle
spasms throughout the upper back area from the neck. The pain
was located in the top of the upper back, in the middle, and
down into the trapezius on the right side. Sometimes, the
pain lasted for hours but it was basically a constant ache.
He described the pain as crushing in nature, cramping and
sharp, with severity level of a 10.
When he had sharp pain, his muscles locked up and felt stiff
and he reported that he was unable to go through a full range
of motion. For relief he took Naprosyn, Flexeril, Vicodin,
and Tylenol No. 3; his medication made him very sleepy, and
he could not do much. He was unable to do any extended
physical activity and no extreme exercise.
On examination, he had radiation on movement with radicular
pain on the right and muscle spasms on the right and muscle
spasms and tenderness on the right erector spinae muscle.
His tenderness was in the right trapezius and the posterior
cervical musculature.
The veteran's range of motion for flexion was noted to be
from 0 degrees to 45 degrees with pain at 45 degrees;
extension was from 0 degrees to 45 degrees with pain at
35degrees; right and left lateral flexion was from 0 degrees
to 45 degrees with pain at 45 degrees; right rotation was
from 0 degrees to 80 degrees with pain at 60 degrees; and
left rotation was from 0 degrees to 80 degrees with pain at
80 degrees. There were no additional limitations besides
pain and there was no ankylosis or intervertebral disc
syndrome present.
At the February 2008 VA contract examination, the veteran
reported having muscles spasms in the neck and right
shoulder, stiffness and weakness in the neck and constant
sharp, burning pain that traveled down to his shoulder. He
rated the pain a 10 out of 10. When he had pain, he need
complete bed rest.
On examination, there was no radiation of pain on movement;
there were muscles spasms throughout the right posterior neck
and lateral neck and tenderness across the paraspinal muscles
of the entire neck.
His range of motion for flexion was from 0 degrees to 45
degrees with pain at 45 degrees; extension was from 0 degrees
to 30 degrees with pain at 30 degrees; right and left lateral
flexion was from 0 degrees to 30 degrees with pain at 30
degrees, right and left rotation was from 0 degrees to 60
degrees with pain at 60 degrees.
After repetitive use, pain was the major functional impact;
no fatigue, weakness, lack of endurance, incoordination, or
additional degree of limitation of motion.
After careful review of the medical evidence, the Board finds
that the service-connected cervical spine disability warrants
an initial higher rating of 20 percent based on the evidence
showing the veteran's functional restriction due to pain and
the related muscle spasms.
The veteran in this regard does not meet the criteria for a
higher rating since forward flexion of the cervical spine is
not restricted to 15 degrees or less; ankylosis of the
cervical spine is not shown. The Board notes that the
veteran was granted an initial higher rating under the most
recent criteria and that the criteria from September 23,
2002, do not apply since he does not have intervetebral disc
syndrome.
The Board notes that VA must consider the effect of pain and
weakness when rating a service-connected disability on the
basis of limitation of range of motion. DeLuca, supra.
Functional loss due to pain or weakness must be supported by
adequate pathology and evidenced by the visible behavior of
the claimant. See 38 C.F.R. § 4.40.
Though the VA examination showed pain as a factor there was
no evidence that his service-connected cervical strain has
additional limitation of function due to fatigue, weakness,
pain and lack of endurance. The currently assigned 20
percent rating contemplates the functional loss under DeLuca.
Accordingly, the Board finds that an initial 20 percent
disability rating, but not higher, for service-connected
cervical strain is warranted.
ORDER
An initial rating higher than 30 percent for the service-
connected migraine headaches is denied.
An initial rating of 20 percent, but no more for the service-
connected lumbar strain and lumbar myositis is granted,
subject to the regulations controlling disbursement of VA
monetary benefits.
An initial rating of 20 percent, but no more for the service-
connected cervical strain with spasms in the neck and right
trapezius muscle is granted, subject to the regulations
controlling disbursement of VA monetary benefits.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs